Alcohol abuse is one of the most popular reasons for divorce or family wreckage. In this episode, Divorce and Family Law Partner Jared Pinkus and Divorce and Family Law Attorney Joseph Napoli II share their knowledge on alcohol addiction and its effects on litigants in the divorce process. Establishing parenting time as a huge part of the litigation process, they explain how the court views alcohol issues as related to it. They also talk about the immediate impacts of alcohol abuse to people affected in divorce and how recovery is proven to the court.
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Alcohol Abuse And Effect On Litigants When Divorcing
Our CMO, Sandra Napoli-D’Arco, asks questions that get the attorneys talking about everything they know and have experienced throughout their years of being divorce lawyers.
I’m here with Jared Pinkus and Joe Napoli. We are speaking about alcohol addiction and the effects and litigants in the divorce process. Without further ado, I’d like to introduce Jared and Joe. I’ll have them share a little bit about themselves and then we’ll get started on the subject matter.
Jared: My name is Jared Pinkus, I’ve been a partner at Beermann for the many years practicing primarily in areas of family law and dealing with the issues related to child custody and divorce.
Joe: I’m Joe Napoli. I went to John Marshall Law School here in Chicago. I’ve been with the Beermann firm for a few years. I’m very happy to be here and very excited to talk about the topic as it comes up in some of my cases.
How do the courts view alcohol issues as they relate to parenting time?
Jared: The court’s first and foremost concern is making sure that the children are protected. Whether it’s alcohol or some other form of substance abuse, the court wants to make sure that there’s no immediate harm or danger to the children. Over the last few years, a lot of technology has helped courts monitor that better with a program called Soberlink. They can do immediate alcohol testing and know that a parent is sober when they had their child or other forms of drug testing. They’re wanting to make sure that the child is safe and that the parent isn’t abusing substances when they’re with the child.
They also want to look at the underlying issues as well so that this type of monitoring doesn’t go on and on. Whether it’s treatment, inpatient, outpatient or some form of other therapy that’s necessary, the court also often look at that. One thing that they always are working towards is making sure that the child has a positive and healthy relationship with both of their parents, regardless of the substance abuse issue. While it’s helping the parent deal with the substance abuse issue, a lot of the time it’s also making sure that that parent isn’t just being pushed aside and left to fend for him or herself without parenting time with the child.
Joe, if a person going through a divorce is found to have abused alcohol, what are the immediate impacts on that individual?
Joe: The court, in my experience, is always going to exercise caution first. If it’s found that someone has some alcohol issues, the court is going to take some action. That could be a scale of things. The harshest action could be supervised parenting time or stripping that parent of parenting time in its entirety until the people and the court has a better understanding of how bad the issue is. Is the child safe and what are we going to do next to find out more? In that scenario, caution is going to be exercised first and foremost. It’s important to know for litigants, whether they can control it or not control it, it’s going to be a momentum shift. If there was an alcohol issue in a case, my experience has shown that it’s going to set the momentum and it could shift things. If you are the litigant that was found to have abused alcohol or made it an issue, you can’t be running uphill in a sense.If you are under the influence when you are exercising your parenting time, it's going to be an issue. Click To Tweet
How do we define alcohol as an issue? Does the court have a way of saying, “You’re an alcoholic,” or “You’ve had two drinks and it makes you drunk. It causes you to be unruly?” What is the definition and then who determines?
Jared: That’s a very common issue. A lot of the times when we’re sitting down to meet with a client to begin with, they’ve got concerns that their spouse or one of the parents is abusing alcohol or abusing drugs, but there’s no material evidence of that. There’s no proof of it. He comes home and has a couple of too many beers at the end of the night. Usually, there will be a child representative or a guardian ad litem will be appointed and they’re going to look and see if the behaviors impacting that child can be pointed or tied directly back to alcohol. Sometimes that’s when those monitoring protocols that we were talking about come into effect. If drugs are an issue, there could be random drug testing to make sure that everybody’s clean. There could be an initial test and they also do hair follicle testing.
They can look back 60, 90 days and check to see if there’s been real substance abuse and who are being forthright and who’s not in this. They will try to begin to deal with that issue. Alcohol is tougher. It’s legal. With marijuana becoming legal, that’s probably going to create a whole new Pandora’s box on how you can tell if there’s an abuse of it or if it’s just a regular and social enjoyment of something illegal and that’s not creating a problem. What that will tie into is how is it impacting their parenting? Were they driving under the influence or they’re DUIs? Are they abusive? Do the children of certain age can report back that, “Dad was drinking too much,” or “Dad fell asleep on the couch for the whole night?” Are they observing other signs that would cause concerns about substance abuse that impact their parenting time with their children?
Joe, does it make a difference if the abuse of alcohol happened during parenting time versus not during parenting time?
Joe: I think it makes a big difference. I’m certainly not advocating for this, but if the issue of alcohol happens not during your parenting time, maybe that doesn’t come to light. That might not be known to the court. What the court looks at is they want to know the issues as it relates to the children. Certainly yes, if you have problems unrelated to the child and they keep re-occurring, that might be brought up. That might be an issue that might have affected your parenting time. However, if you are doing things on the greater scale like driving under the influence, if you have your child with you during those occurrences or you passed out during your parenting time because you had one too many, that is going to be a big problem as opposed to if you did not have your child. I think there is a big difference in that scenario. If you do these things when you are exercising your parenting time, it’s going to be an issue.
Jared: Another point that we see a lot, because there’s a spectrum of where you fall on the substance abuse side of things. In situations where there’s either denial of there being an issue or were flushing out early on as to whether or not there’s a problem with alcohol or you just have one or somebody had one too many on a couple of different occasions. If you don’t have your kids and you’re under this microscope, which you are when you’re in custody litigation period, and you’re abusing alcohol on your non-parenting nights, that’s going to call into question your ability to control the problem even though it doesn’t directly tie to your children. When courts are talking about how much parenting time are you going to have going forward, it’s going to consider the fact that maybe the alcohol abuse issue is more than just a social enjoyment or a couple of mistakes, but it’s a real problem that is not being addressed. As opposed to somebody who doesn’t have a problem but has on occasion gone out and had one too many, that’s up to the judge’s discretion as well as the child rep and the guardians to see how they’re going to respond to that.
Have there been situations where children have been taken away from one of the parents because of alcohol abuse?
Joe: The short answer is yes. It’s unfortunately not uncommon. As we discussed earlier, the court is inclined to exercise caution first. Depending on how severe the allegation is, depending on if a parent went to the hospital because of this, the court is going to exercise caution. That’s going to be one of the more severe penalties, but absolutely, a court can, does and will take a child away from a parent until they feel comfortable and certain that that parent is okay to exercise time.
Jared: That’s the key to the whole taken-away concept is they’re going to take them away for a while, but they’re never going to take them out of that parent’s life. There’s always this process of trying to help build that relationship. Even once the child is taken away, that’s a temporary removal while you’re hopefully working towards building a healthier relationship between the parent and child.
The court does checkups on parents so that it minimizes the amount of time that they are or not with their children. Is that correct?
Jared: The court will have the lawyers or the child’s rep coming back to report on the progress of somebody in a substance abuse situation. Sometimes it’s 90 days out or 6 months out to keep progress. Sometimes they’ll keep a much shorter leash on it depending upon the specific circumstances. The court is always monitoring it and trying to make sure that the child has a healthy relationship with both parents. That’s what the court wants. It knows that it’s up to the parent who has the substance abuse issue to get the help that he or she needs to get healthy so that they can have a safe and healthy relationship with their child. The court is rooting for that to be successful and will give every opportunity, but they will not be erring on the side of caution. In our experience, the court will always err on that side if the judges want to make sure that nothing’s happening to a child that’s in their jurisdiction.
This might sound a silly question but I’m curious, where do the children go, to DCFS? Is it to the other parent?
Jared: They’ll go to the other parent.
Joe: Assuming there are no issues with the other parent, if that parent has presumptively unrestricted parent’s time, in other words, they don’t have someone watching over them while they’re exercising time, then absolutely. Those responsibilities that the parent that has the allegations of alcohol abuse against will go to the other parent. The other parent will have all of the parenting time until things can get sorted out as what the issues are with the parents’ use of the alcohol issue.
Jared: There are always the rare circumstances where grandparents or other interested parties where both parents are completely unfit or for one reason or another were unavailable to exercise custody or parenting time.
Let’s take a scenario. Let’s say someone does have an alcohol abuse problem. They get help for it. They’re on the meds and maybe two years down the line, they have a relapse. What happens?The court is always looking about protecting the child, but it also understands how important it is to have two healthy parents. Click To Tweet
Joe: The good news is that if you have a relapse, there’s going to be encouragement to get help. There’s going to be a second chance. It sounds like what we’re talking about now is the second or third opportunity.
Do I lose my children rather, on the second time around?
Joe: I relapse, I came back, I did better and some time went by and I relapse again. I’m going to tell you in my experience that, and I don’t encourage it, you’re always going to get opportunities. There’s going to be less patience with you when you get these opportunities. The light’s going to be a bit brighter on you, but you will get these opportunities. I think the more that you relapse if you have these second or third relapses, it’s going to take longer to get back there. It’s not impossible. It’s not ever going to not happen if that makes any sense, but the road to recovery is going to get longer.
Jared: The other thing to it too is I completely agree. It’s so important to be forthright and honest with the court about relapses, about what happened, about the extent of it. Your credibility, especially when you are abusing substances is paramount and it’s verifiable. If you go into court and say, “I haven’t used drugs. I’m not using drugs. I’ve resolved this” and they order a drug test and it comes back positive, every time you say anything going forward, you’ve lost your credibility. You’re going to be suspect. You may end up going back under that microscope because you’ve relapsed. It’s always better to do that. Having been honest and forthright about what’s happened, be it to the child rep, definitely to your attorney and obviously to the court and deal with the problem head-on rather than denying it. You’re pushing it along until it does finally catch up with you. That’s a deeper hole to dig out of.
In your opinion, what would be the best way to prove to the court that I truly am on my way to recovery?
Joe: What my experience has done and what we’ve done is we’ve got to front the issue. If you have a litigant that passed out on the couch and they have a two-year-old child, they’d been knocked out for 4 to 5 hours. The police came. They had to go to the hospital. They had to get treatment. They have to come into court and say, “It was just a one-off, no big deal, we’re fine now.” I think that’s a problem. If you have an issue like that, you need to get help, whether that’s AA, seeing counselling or getting a sponsor. Even if you want to prove to the court, there might be some alcohol monitoring.
Maybe fronting those issues to the court and recognizing, “I’ve got a problem. I’m not going to stand up here and tell you this was a one-off or this should not have happened, but I’m fine now. I’m going to prove it to you. I’m not going to tell you, I’m going to show you.” We have devices in place that the court utilizes, not to give any endorsement to anybody out there but there are these bracelets that people wear called the SCRAM bracelet, which is a 24-hour monitoring device that goes on the ankle. It’s rather discreet and there’s also a blowing device, which is commonly used in domestic relations proceedings called the Soberlink device.
This is very interesting and very relevant topic in your world. Is there anything else you’d like to add before we close this chapter of our book?
Jared: The one thing I’d like to add is that the court is always looking about protecting the child, but it also understands how important it is to have two healthy parents. A lot of the times, addiction problems create people this anxiety that somehow if they can’t own up into it, they can’t get the treatment they need. They can’t get the therapy they need. It harms their relationship with their child in the form of admission of guilt in the court system. The opposite is true. If you have an issue and you’re doing everything that is necessary to address that issue or you’re going to outpatient treatment, inpatient treatment or whatever it is you need, that you get the credit that you deserve. The court will protect your parental rights. When you come out healthy and you’re staying on your plan, you’ll get back to the relationship you were hoping for with your child. The court works hard to do that. We always encourage our clients in those situations to make sure they’re getting the help that they need so that they can healthfully parent their child.
Joe: It’s unfortunate but these are not uncommon scenarios. Be upfront with your lawyers and yourself. If there is an issue and you’re in litigation, let’s get a game plan in place to get you on the road to recovery.
Joe and Jared, thanks so much. Thanks for reading the Divorce Talk Podcast. If you’d like to learn more about Jared or Joe, visit our website at www.BeermannLaw.com. Subscribe to the Beerman Podcast on your favorite podcast channel. We look forward to seeing you at the next podcast series.
About Jared Pinkus
As an attorney who has focused his career in the practice family law, Jared Pinkus has negotiated settlement agreements and litigated complex financial disputes, child custody and out-of-state removal matters, jurisdictional disputes – including disputes related to the Uniform Child Custody Jurisdiction and Enforcement Act – and paternity actions.
Jared takes a measured yet calculated approach when representing clients going through difficult times in their personal lives. In Jared’s experience, a well-negotiated settlement agreement frequently provides the best value and security for his clients and their family. When negotiating settlement agreements, Jared works with his clients to plan and implement a strategy always keeping the client’s final objectives in the forefront.
Unfortunately, settlement is not an option in all cases. With that in mind, throughout the negotiation process Jared utilizes discovery tools, motion practice and the rules of procedure and evidence to position his client’s case for litigation. At trial, Jared takes an aggressive yet reasonable approach arguing the particular facts of each case to the applicable law.
Jared has tried and received favorable results in actions pertaining to the following:
- Allocation of complex marital and non-marital estates, including the valuation and allocation of privately held businesses.
- Forensic accounting and tracing of income and other funds over a significant period of time through various transactions and international currencies.
- Determination of appropriate child and spousal support, commonly referred to as maintenance or alimony.
- International jurisdictional dispute between Illinois and India.
- Initial child custody disputes and modifications to child custody and visitation schedules.
- Child custody and visitation issues involving drug and alcohol abuse.
- Seeking and defending against out-of-state removal of a minor child.
Super Lawyers Magazine named Jared as a Rising Star in the area of Family Law in both 2012 and 2013, a designation reserved for the top 2.5% of all Illinois attorneys fewer than 40 years of age.
About Joe Napoli
Joseph R. Napoli II primarily focuses his practice in all areas of family law. Mr. Napoli counsels clients in a wide range of dissolution of marriage and paternity proceedings, including child custody, child support, maintenance, visitation, removal, division of property, domestic violence, contempt and enforcement proceedings, and pre- and post-nuptial agreements.
Mr. Napoli began his career in family law as a law clerk at Nadler, Pritikin & Mirabelli LLC. Mr. Napoli continued his career as a law clerk at Beermann LLP and is now an associate attorney at the firm.
Mr. Napoli is a graduate of The John Marshall Law School. In recognition of his work in family law, Mr. Napoli has received the Client’s Choice Award from Avvo.
Prior to his legal endeavors, Mr. Napoli was drafted by the Texas Rangers in a Major League Amateur Draft.
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